Yukon Supreme Decides First Challenge To Yukon Environmental Assessment Board (YESAB)

Overview

On July 4, 2011, Mr. Justice Veale of the Supreme Court of Yukon issued a decision in Liard First Nation v. Yukon Government and Selwyn Chihong Mining Ltd., 2011 YKSC 55 dismissing a challenge to the environmental assessment of Selwyn Chihong's advanced exploration project pursuant to the Yukon Environmental and Socio-economic Assessment Act ("YESAA").

Chuck Willms and Kevin O'Callaghan of our Vancouver office acted for Selwyn Chihong on the judicial review.

In the first case to deal directly with the YESAA, Mr. Justice Veale held that work done by the Yukon Environmental and Socio-ecomonic Assessment Board ("YESAB") reasonably met the statutory requirements and that the decision of the Director of Mineral Resources was similarly reasonable in accepting the recommendation that the Selwyn Project proceed. Finally, the Court concluded that the Director had adequately fulfilled any duty to consult, statutory or constitutional, throughout the process.

Facts

Selwyn Chihong sought to commence an advanced exploration project in further development of a zinc-lead formation in the Howard's Pass area of Yukon (the "Selwyn Project"). The Selwyn Project is located in an area the Liard First Nation claims as its tradition territory.

Due to the nature and location of the Selwyn Project, it was subject to assessment under YESAA. Selwyn Chihong submitted an application and, on December 23, 2009, the Designated Office commenced an assessment.

A number of parties, including the Liard First Nation, were notified of the Selwyn Project proposal and invited to submit comments. The deadline for submissions was extended numerous times and at one point Selwyn Chihong withdrew and resubmitted its proposal in order to restart the submission deadline clock. On May 30, 2010, Liard First Nation submitted comments and a detailed expert report (Report #1) raising issues related to water management.

On June 16, 2010, the Designated Office issued an Evaluation Report recommending that the Selwyn Project proceed subject to a number of terms and conditions to mitigate the potential for significant adverse affects that the Designated Office determined the Selwyn Project would otherwise have.

The final step in the YESAA assessment process is the issuance of a decision document by a Decision Body accepting, rejecting or varying the recommendations contained in the Designated Office's Evaluation Report. This decision document must be issued within 37 days of the Evaluation Report. The Decision Body in this case was the Director of Mineral Resources and the deadline to issue a decision document was July 23, 2010.

On June 29, 2010, and on July 9, 2010, Liard First Nation was faxed draft versions of the Decision Document. On July 22, 2010, a meeting was held between the Decision Body and Liard First Nation for the specific purpose of consultation on the Designated Office's Evaluation Report and the Decision Document drafts. Liard Fist Nation presented the Decision Body with a second detailed expert report (Report #2) addressing whether...